Ilievska and Secretary, Department of Social Services (Social services second review)

[2018] AATA 1308

Ilievska and Secretary, Department of Social Services (Social services second review) [2018] AATA 1308 (18 May 2018)

Division:GENERAL DIVISION

File Number(s):      2017/2093

Re:Cveta Ilievska

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:18 May 2018

Place:Melbourne

The Tribunal affirms the decision under review.

..........[sgd]..............................................................

Senior Member D. J. Morris

SOCIAL SERVICES – disability support pension (DSP) – cancellation – 2011 Determination applies – whether qualified – whether impairments assigned 20 or more impairment points – not qualified at time DSP cancelled – decision affirmed

Legislation

Social Security Act 1991, ss 94(1), 94(1)(a), 94(1)(b), 94(1)(c)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Senior Member D. J. Morris

18 May 2018

1. The Applicant in this matter is Mrs Cveta Ilievska.  She was granted the disability support pension (DSP) from 11 January 2005.  Mrs Ilievska made an inquiry of the Department of Human Services (the Department) about going abroad for more than the time usually permitted for recipients of DSP.  On 19 May 2015 the Department responded to her inquiry and said that she had agreed to undergo an assessment as to whether she was still medically qualified to receive DSP.

2. The letter set out that Mrs Ilievska’s qualification for DSP would be assessed using the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). The Determination was made by the Minister administering the Social Security Act 1991 (the Act) under section 26(1) of the Act and took effect from 1 January 2012.

3. Mrs Ilievska provided to the Department a range of medical reports and certificates completed by her medical advisers.  She also underwent a Job Capacity Assessment (JCA) conducted by an officer of the Department, on 26 July 2016.  The JCA concluded that Mrs Ilievskahad the following medical conditions: a spinal disorder, fibromyalgia, a musculoskeletal disorder, a depressive condition and anxiety, asthma, a respiratory disorder and gastro-oesophageal reflux (GOR).  The JCA also concluded that Mrs Ilievska had a work capacity of between 8 and 14 hours a week increasing to between 15 and 22 hours a week with intervention in two years.

4. On 30 September 2016, the Department sent Mrs Ilievska a notice cancelling her DSP on the basis that she was not medically qualified to receive it.  Mrs Ilevska sought a review of the cancellation decision by an Authorised Review Officer (ARO), an officer of the Department not involved in the original decision.  On 11 November 2016, the ARO affirmed the cancellation decision.  Mrs Ilievska then sought a review by the Social Services and Child Support Division of this Tribunal (AAT1).  Following a hearing, on 15 March 2017, AAT1 affirmed the cancellation decision.

5. Mrs Ilievska has now sought a second-tier review, which is this hearing.  The hearing was on 25 January 2018.  Mrs Ilievska represented herself, gave evidence and was cross‑examined by Ms Ailsa Bramley, a legal officer of the Department, representing the Respondent.  The Tribunal was assisted by an interpreter in the Macedonian language.

6. The Respondent tendered documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 (‘T’ documents) which were admitted into evidence. The Applicant submitted three medical letters from treating health practitioners, which were taken into evidence.

   QUALIFICATION FOR DSP

7. The Act sets out the qualifications for DSP. Particularly relevant is section 94 of the Act. In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Act and the qualification criteria for DSP must be satisfied. It must be established that the person applying has:

   (a)a physical, intellectual or psychiatric impairment; and

   (b)an impairment of 20 points or more as assessed using the Impairment Tables in the Determination; and

   (c)a continuing inability to work.

8. The question before the Tribunal is whether Mrs Ilievska was qualified for DSP on the date it was cancelled by the Department, 30 September 2016, in accordance with the law applicable on that date.

   Does the Applicant have physical, intellectual or psychiatric impairment?

9. The Respondent conceded that Mrs Ilievska has a number of medical conditions that result in physical and psychological impairments, and noted that her treating general practitioner, Dr Hercules Duvel, listed her medical conditions as: back pain, facet osteoarthritis of the lumbar spine; involuntary head movements; tinnitus and hearing loss; depression; a condition affecting her vision; and memory impairment.

10. The Tribunal had before it a medical report by Dr Duvel dated 4 June 2015.  Dr Duvel reported that Mrs Ilievska’s back condition is the medical condition which has the most impact upon her.  He said the symptoms were ongoing back pain in any position and that this condition had been worsening over the last 22 years.  Dr Duvel also reported “involuntary neck movements – tics” as a condition first diagnosed in 2009 which he said occurred daily and was unable to be controlled.  Dr Duvel also listed four medical conditions that he considered are generally well managed and caused minimal or limited impact on the Applicant’s ability to function, being: anxiety and depression, asthma, fibromyalgia and GOR.  Dr Duvel subsequently provided a letter to the Department dated 7 March 2017 which, in addition to the conditions outlined in his 2015 medical report, stated that Mrs Ilievska suffers from tinnitus and hearing loss.

11. After considering the medical report contained in the T documents, the Tribunal finds that Mrs Ilievska satisfied section 94(1)(a) of the Act as at the date of cancellation. She had impairment, namely: back pain; fibromyalgia; involuntary head movements; anxiety and depression; asthma; a gastric condition; a memory impairment condition; and a hearing impairment condition.

    What is the correct rating under the Impairment Tables?

12. The Impairment Tables are function-based rather than diagnosis-based and describe functional activities, abilities, symptoms and limitations. Section 5(2) of the Determination provides that the tables are designed to enable the assignment of ratings to determine the level of functional impact of impairment and not to assess conditions.

13. Section 6(1) of the Determination sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could, do, not on the basis of what a person chooses to do or what others can do for the person. Section 6(2) of the Determination provides that the tables may only be applied after a person’s medical history in relation to the condition causing the impairment has been considered. Under section 6(3), an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is ‘permanent’ and the impairment that results from that condition is more likely than not, in the light of available evidence, to persist for more than two years. The word ‘permanent’ in the Determination has a special meaning, it is not the ordinary, everyday meaning of that word. For a condition to be regarded as permanent in assessment for DSP, section 6(4) of the Determination requires that the condition be fully diagnosed, fully treated and fully stabilised by an appropriately qualified medical practitioner.

14. The Determination also provides, at section 6(8) that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment rating from the condition may not result in any functional impact. The Tribunal must therefore consider Mrs Ilievska’s medical conditions with reference to the applicable Impairment Tables at the time her DSP was cancelled, not when she originally qualified for DSP in January 2005.

    CONSIDERATION – THE APPLICANT’S MEDICAL CONDITIONS

    Back pain and Fibromyalgia

15. As mentioned above, Dr Duvel referred to Mrs Ilievska’s back pain in his 2015 medical report.  Dr Duvel referred her to Dr Chamila Dabare, a consultant rheumatologist.  Her medical letter dated 2 February 2016 to Dr Duvel was before the Tribunal (T22).

16. Dr Dabare stated:

    Cveta is a 56 year old housewife.  She suffers from chronic wide spread pain for many years.  This pain is mechanical in nature.  She has pain in the neck, shoulders, lower back, elbows and hands.  She does describe radicular pain in hands and sciatica pain in L leg related to cervical lumbar spondylosis.  I note that previous MRI showed degenerative changes in cervical spine and Ct lumbar spine showed facet joint arthritis at L4-5.  She has no features of an inflammatory arthritis.  She has features of fibromyalgia.  She wakes up with fibro fog.

17. Dr Dabare found on examination that Mrs Ilievska had multiple tender points in keeping with fibromyalgia and concluded that her patient had evidence of degenerative cervical and lumbar spondylosis with osteoarthritis of the knees.  She said this condition has been complicated by chronic pain with fibromyalgia and recommended a change in medication, blood tests and physiotherapy through a care plan.

18. The Tribunal had before it a letter from Caroline Solich, physiotherapist, dated 24 May 2016 to Dr Duvel, advising of progress after completion of treatment sessions including manual therapy to relieve pain and a home exercise programme.  Ms Solich said that Mrs Ilievska found the exercise programme gave her temporary relief but also said she had reported stress and anxiety in her everyday life and Ms Solich considered Mrs Ilievska would benefit from a Mental Health Care Plan.  Ms Solich recommended Mrs Ilievska commence hydrotherapy twice weekly, together with continuing her home exercises.

19. The Tribunal also had before it a letter to Dr Duvel from Thuan Luong, physiotherapist, dated 15 December 2016.  Mr Luong assessed that Mrs Ilievska appeared to be in a lot of pain and demonstrated very limited movement of her hips and knees.  She told Mr Luong that the stretches he had recommended to her had caused her more pain so she discontinued them the day after he saw her.

20. Mrs Ilievska told the JCA that she could sit and drive for between 30 minutes and an hour, could bend to the floor, though not repetitively, but could not sustain overhead tasks or carry shopping bags heavier than 3 kilograms.  She said she was able to move her head from side to side and up and down, slowly and carefully.  Dr Dabare reported that the range of movement of Mrs Ilievska’s neck was restricted by pain at the extremes.

21. While there is evidence that Mrs Ilievska was awaiting a L4/5 facet joint steroid injection and the ‘possibility’ of an epidural injection if that does not assist, on balance I am satisfied that, given the medical evidence from Dr Duvel that this condition had been of long standing (22 years), and the corroborating diagnosis and assessment by Dr Dabare, a specialist, that this condition may be regarded as permanent for assessment under the Determination. In coming to this conclusion, I note that there have been changes in medication recommended in February 2016 by Dr Dabare, and physiotherapy proximate to the cancellation date, but I am satisfied that these are steps taken in the management of a long-standing, entrenched condition.

22. The relevant Impairment Table in the Determination is Table 4 – Spinal Function. Mrs Ilievska gave evidence that she is able to sit in a car for up to an hour but that she cannot sustain overhead activities. She also has difficulty, as reported by Dr Dabare, in moving her neck freely. After carefully considering the Descriptors in this Table, I am satisfied that Mrs Ilievska should be allocated 10 impairment points for this condition.

    Involuntary head movements

23. The Tribunal had before it a medical letter (T43, p 178) dated 29 June 2009 from Dr Jacques Joubert, neurologist, who examined Mrs Ilievska after she had been complaining of a nervous tic involving her neck for “the last few months”.  In addition, the Tribunal considered a letter dated 1 August 2015 (T43, p 179) from Dr Tissa Wijeratne, neurologist, after he reviewed Mrs Ilievska.  He stated that she had evidence of cervical dystonia, dystonic head tremor and ongoing anxiety.  He prescribed medication (Artane) and decided to postpone Botox injections until after Mrs Ilievska returned from overseas travel.  At the hearing, Mrs Ilievska was unsure whether she had received the injections after her trip but there was evidence in the papers in an outpatient progress note from Dr Evans at Melbourne Health Botox Clinic dated 15 August 2016 that she had these injections and that it had been explained to the patient that the Botox may reduce the tremor and neck pain but the benefit would be temporary.  Dr Duvel (T43, p 174) stated in March 2017 that this was a disabling condition for which several treatments had failed and it affected her sleep and left Mrs Ilievska fatigued.  It was Dr Duvel’s view that current treatment was not helping sufficiently and there was nothing else that could be offered.

24. At T37 was a medical letter to Dr Duvel from Dr Kar Yan Lo, neurologist, dated 26 October 2016.  On examination Dr Lo found a jerky “no-no tremor”, and stated:

    There was no bruit on auscultation and head impulse test was negative.  There was no focal neurological deficits.

    Dr Lo organised for Mrs Ilievska to have botulinum injections.  He also noted that Mrs Ilievska told him that she had only taken one dose of Artane prescribed by Dr Wijeratne.

25. I am satisfied that this condition is fully diagnosed in the sense that it has been consistently identified by physicians with specialisation in neurology (even if the root source is not clear) but there is insufficient information before me that this condition was fully treated and stabilised at the time of cancellation. I find that the fact that Mrs Ilievska did not continue with the medication prescribed by Dr Wijeratne to treat the condition leads me to conclude she does not satisfy the requirements of section 6(6) of the Determination as she has not undertaken reasonable treatment. I find that this condition is therefore not capable of being considered for the assignment of points under an Impairment Table.

    Anxiety and depression

26. Dr Duvel in his June 2015 report considered that this condition was generally well managed and caused little functional impact.  The Tribunal had before it a medical letter to Dr Duvel from Dr Rajnarayan Mahasuar, psychiatrist, dated 20 October 2016.  He stated he reviewed Mrs Ilievska on two occasions and said:

    But, I’m still unclear about her presentation.  Apart from her complex clinical presentation, cognitive decline and lack of collateral information added to additional difficulty.

    …

    It seems that her cognitive decline is organic in nature and most likely a progressive condition (? Dementia).  Her depressive symptoms are secondary to her helplessness, which is a result of her cognitive decline.  She also reported multiple somatic symptoms, and I’m not sure about the organic basis of the same.  There is no evidence of any other major mental illness or major risk issues. 

27. Dr Mahasuar agreed with Dr Duvel’s approach to commence Mrs Ilievska on Sertraline, and recommended the dosage be increased and that her Endep medication be stopped. Dr Mahasuar advised that Dr Priya Allencherry, psychiatrist, would follow up the Applicant.

28. The Tribunal had before it a letter dated 19 April 2017 from Dr Allencherry (Exhibit A3) in which she reported that:

    Since recommencing on Endep 10mg nocte [sic] on alternate nights (initially to minimize daytime dizziness and sedation), Cveta reports her sleep quality and quantity has improved from 3 hours to 7 hours.

29. The Tribunal considers that Mrs Ilievska’s mental health conditions are fully diagnosed, though notes from some of the observations of her neurologists that her anxiety may be contributed to by other conditions.  However, on the evidence these conditions had not been fully treated and fully stabilised at the date of cancellation of the DSP.  The Applicant apparently only consulted with a psychiatrist around October 2016 and, at that stage, Dr Mahasuar felt he had insufficient information before him to settle on a clear diagnosis.  After that initial consultation, another psychiatrist has been adjusting Mrs Ilievska’s medication in consultation with her general practitioner.  Because treatment was still being undertaken and adjusted, and specialist treatment engaged after the date of cancellation, I find that this condition is not able to be assessed under the relevant Impairment Table, Table 5 – Mental Health Function, at the time of cancellation.

    Asthma

30. Dr Duvel refers to the Applicant having this condition in his June 2015 report, and that it caused little or minimum impact on her ability to function. Dr Melissa Yang (T43, p 184), respiratory physician, was of the view in February 2016 that Mrs Ilievska’s diagnosis of asthma had not been formally confirmed and “seems slightly atypical from the history”. There was scant other information available to the Tribunal on this condition and so it was not considered further in terms of the Determination.

    Gastric condition

31. In his 2015 medical report, Dr Duvel referred to Mrs Ilievska having GOR but that it was a well-managed condition with minimal or limited functional impact. The Tribunal did not have other information on this specific condition in the papers, so did not consider it further, applying section 11(5) of the Determination.

    Memory impairment

32. Before the Tribunal (T34) was a medical letter to Dr Duvel from Dr David Freilich, neurologist, dated 19 October 2016.  He examined Mrs Ilievska following her complaining of a “7-10 month history of poor short term and long term memory”. He stated:

    On examination today she scored 22/30 on the MMSE having lost 3 points on 3 item recall, 2 on orientation to time and one each on registration, repeating a sentence and 3 step command.  Her blood pressure is 126/73 and her heart rate is 76 beats per minute regular.  She does not have cranial nerve palsy or cerebellar signs.  On upper and lower limb examination the tone, strength and reflexes are normal.  During the examination Cveta is clearly slow in both mentation and her movements.  She can recall 2/3 items when prompted. 

    Cveta’s cognitive impairment is secondary to her depression.  I have organised some blood tests to screen for other differentials.  She refuses to undergo further MRI examination because of severe claustrophobia.  She had a recent brain MRI performed for tinnitus.  I would be grateful if you would forward me the MRI report. 

    I would like to see her again in 2 months with a blood test result.

    Dr Lo also concluded later in the same month (T37):

    I feel that her cognitive complaints might be secondary to her depression and poor sleep.  I’ll consider referring her for formal neuropsychological testing if her memory doesn’t improve with treatment of her other symptoms.

33. Given that the results of blood tests were still being awaited by Dr Freilich subsequent to the date of cancellation and Dr Lo was also considering whether or not neuropsychological testing was desirable, there was no settled diagnosis of this condition and under section 6 of the Determination, Mrs Ilievska’s memory impairment condition was not capable of being considered for the assignment of impairment points as at 30 September 2016.

    Hearing impairment

34. Dr Lo in his letter dated 26 October 2016 refers to Mrs Ilievska having a “long history of tinnitus in the left [ear] and progressive hearing loss, worse on the left.” 

1. The Tribunal had before it (T20) a report by Scott Pasquill, senior audiologist, dated 10 May 2016.  He said Mrs Ilievska presented complaining of tinnitus in the left ear which started “approximately three years ago”.  On testing, he found that she had hearing loss, mild high frequency hearing loss bilaterally with the left ear poorer than the right, and that hearing aids would be trialled and fitted. 

2. Mr Pasquill saw Mrs Ilievska again on 18 October 2016 and reported (T33) that an assessment revealed a hearing loss. In his letter to Dr Duvel, Mr Pasquill stated:

   She has seen 2 ENT’s previously and no intervention has been carried out.  She was obviously quite distressed, anxious and desperate for help today.  She reported that she is also seeing a psychologist and several specialist[s] for the “pain” that she has suffered and is desperately looking for an answer to cure her anxiety and pain was well as the roaring in her ears.

   …

   Today’s results show that Mrs. Ilievska has a moderate high frequency sensoneural hearing loss in the right ear and a severe flat mixed hearing loss in the left ear.  This is a significant deterioration in her left ear which has been included for comparison, however considering the state that Mrs. Ilievska was in today, I suspect that the left ear thresholds are suprathreshold.

3. At the hearing Mrs Ilievska provided a further report from Mr Pasquill dated 5 April 2017 (Exhibit A1), where he stated that, on testing that day, the hearing assessment revealed “significant change in hearing levels”:

   Mrs Ilievska has a mild to moderate sensorineural hearing loss in the right ear and a profound sensorineural hearing loss in the left ear.  Her hearing has significantly deteriorated since her last hearing assessment which has been included for comparison.

   Mr Pasquill recommended that Mrs Ilievska be urgently referred to an ear, nose and throat specialist.

4. It would seem that Mrs Ilievska’s tinnitus was of longer standing but that, in the professional opinion of her audiologist, her hearing loss has sharply declined after the cancellation date.  Dr Robin Cassumbhoy, radiologist, administered a brain MRI to Mrs Ilievska on 18 November 2016 to investigate her tinnitus complaint, but his MRI report (T43, p 188) does not reveal any physical cause.

5. Unfortunately, it is not possible to pin down what the situation was at the time of cancellation in terms of assessing the functional impact of Mrs Ilievska’s hearing complaints at that time. It would seem to me that given the referral to an ENT specialist for further assessment, the preferable view would be that her hearing conditions were not fully diagnosed, treated and stabilised at the cancellation date. The Tribunal therefore finds that this condition is not able to be assessed under the relevant table in the Determination, Table 11 – Hearing and other Functions of the Ear.

   Other conditions

6. Dr Duvel refers in his 2015 medical report to Mrs Ilievska being under the care of Dr Yang for a pulmonary condition.  The Tribunal had before it a letter dated 4 February 2016 (T43) from Dr Yang who examined the Applicant after she complained of difficulty breathing at night.  Her conclusion was that Mrs Ilievska may have a nocturnal cough from reflux.  She also considered that a cause may be an endobronchial lesion and arranged a CT scan of her chest in relation to this, as well as lung function tests.  There was a paucity of other information on this condition, so it was not considered further.

7. In terms of Mrs Ilievska’s vision, the Tribunal had a letter from Dr Doug Roydhouse, ophthalmic surgeon, dated 16 February 2017, who examined the Applicant. She reported visual field loss to Dr Roydhouse which he said appeared to be improving, but he wrote to Dr Duvel (T43) that he was uncertain as to why Mrs Ilievska has visual problems because her brain MRI appeared to indicate that any vision problems are “not associated with the visual pathway”.  Dr Roydhouse recommended a further review and testing in six months.

8. In the light of this specialist medical opinion that investigations were underway, and the lack of other specific evidence on the functional effect of any vision impairment, I did not consider this condition further.

   CONCLUSION

9. The Tribunal has found that Mrs Ilievska is assigned 10 impairment points for her medical impairments at the time of cancellation. She therefore did not satisfy section 94(1)(b) of the Act, which requires at least 20 impairment points for a person to be qualified for DSP.

10. Section 94 of the Act is cumulative; each part of that section must be satisfied for a person to be qualified for DSP. I note, for completeness, that the Respondent conceded that the Applicant did satisfy the requirements of section 94(1)(c) of the Act because of the date she had originally been granted DSP. However, that would only be relevant in terms of qualification at the date of cancellation on 30 September 2016 if section 94(1)(b) was satisfied at that time, and I have found that it was not.

    DECISION

11. The Tribunal affirms the original decision.

I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

............[sgd]............................................................

Associate

Dated: 18 May 2018

Dates of hearing:	25 January 2018
Applicant:	In person
Advocate for the Respondent:	Ms Ailsa Bramley, Department of Human Services